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Revue de l’histoire des religions
4 | 2011L'Ordre chrétien médiéval entre le droit et la foi
The Devil at Law in the Middle AgesLe Diable et le droit au Moyen Âge
Karl Shoemaker
Electronic version
URL: http://journals.openedition.org/rhr/7826DOI: 10.4000/rhr.7826ISSN: 2105-2573
Publisher
Armand Colin
Printed version
Date of publication: 1 December 2011Number of pages: 567-586ISBN: 978-2200-92722-6ISSN: 0035-1423
Electronic reference
Karl Shoemaker, « The Devil at Law in the Middle Ages », Revue de l’histoire des religions [Online],4 | 2011, Online since 01 December 2014, connection on 01 May 2019. URL : http://journals.openedition.org/rhr/7826 ; DOI : 10.4000/rhr.7826
Tous droits réservés
Revue de l’his toire des reli gions, 228 – 4/2011, p. 567 à 586
KARL SHOEMAKER
University of Wisconsin-Madison
The Devil at Law in the Middle Ages
By the 12th century, the rise of legal science fostered canonists’ and theologians’ attempts to dei ne the mystery of divine justice using the rules of procedural law. During the last two centuries of the Middle Ages, this interest was rel ected in particular through the dissemination of trial stories (Processus Sathanae) opposing Mary to the devil over the salvation of men. The expression of Marian theology set in juristic terms also coni rmed the intrinsic value of Romano-canonical procedure as an institutional foundation of the authority of justice.
Le Diable et le droit au Moyen Âge
Dès le XIIe siècle, l’essor de la science juridique romano-canonique nourrit, chez les canonistes comme chez les théologiens, l’ambition de déi nir le mystère de la justice divine à partir des règles du droit processuel. Dans les deux derniers siècles du Moyen Âge, cet intérêt se traduit notamment par la diffusion de récits de procès (Processus Sathanae) opposant Marie et le diable sur le salut des hommes. Cette traduction de la théologie mariale en termes juridiques coni rme aussi la valeur intrinsèque de la procédure romano-canonique comme fondation institutionnelle de l’autorité de la justice.
“And the Lord said to the demon, ‘We have founded the laws, and we give to them their authority. The laws do not give authority to us.”1
I/ CANON LAW, HISTORY, AND THE LAST JUDGMENT
The propensity for medieval Christian theology to frame history
in juridic terms is well known. The confession of faith issued as
the i rst canon (c. Firmiter) of the Fourth Lateran Council in 1215
offers sufi cient evidence. It afi rmed that at the end of the ages
mankind will stand before an omnipotent God who “will judge the
living and the dead and will render to each according to his works,
the reprobate as well as the elect.”2 The Fourth Lateran Council
did not invent this juridic framework for the Christian conception
of history, but it emphasized it to such a degree that it became a
matter of sustained interest for medieval canonists and theologians
alike. The inclusion of the canon Firmiter at the beginning of the
Liber Extra, promulgated by Gregory IX in 1234, only reinforced to
medieval canonists that there was a seamless relationship between
canon law and Christian eschatology.3
Although Firmiter was primarily a theological statement, its
import for jurists was twofold. First, it used law to divide human
history into discrete ages. As the glossa ordinaria to Firmiter
elaborated, there are three historical ages, each governed by its
own law: the time before law, in which men lived according to the
ius naturale; the time under law, which began when God gave the
Decalogue to Moses; and the time of grace, which began “when the
1. Processus sathanae contra genus humanum, BnF Lat. 10770, fol. 95d. (14th C).
2. Fourth Lateran Council, c. 1. Constitutiones Concilii quarti Lateranensis una cum Commentariis glossatorum, ed. Antonio García y García (MIC, Series A: Corpus Glossatorum 2; Vatican City, 1981), 1-172. “… iudicaturus vivos et mortuos et redditurus singulis secundum opera sua, tam reprobis quam electis.”
3. X 1.1.1 (= 4 Lateran Council c. 1). All citations to the Decretum and the Liber Extra are from the edition of Emile Friedberg, Corpus Iuris Canonici, 2 vols. (Leipzig: Tauchnitz, 1879; reprinted, Graz: Akademische Druck-u. Verlagsanstalt, 1959) unless otherwise noted.
THE DEVIL AT LAW IN THE MIDDLE AGES 569
Son of God taught us the gospels, under which we are ruled today.”4
Second, Firmiter emphasized to medieval canonists that the present
age would culminate in the last judgment, a legal process through
which a gracious and just God would conclude human history.
That human history would culminate in a legal process was only
to be expected. After all, a legal process marked the beginning of
human history, which was initiated after Adam and Eve were judged
and sentenced to exile from Paradise. In fact, canonists located the
inception of their own discipline in that moment. According to
Stephen of Tournai, who was borrowing directly from Paucapalea,
when Adam was charged with disobedience by God and attempted
to claim an “exceptio” by laying a criminal countercharge against
Eve, he became a legal actor. “And thus litigating, or what we
commonly call the form of pleading, appears to have arisen in
Paradise.”5 By i nding the origins of their discipline in sacred
history, canonists vested canon law with two foundational attributes.
First, canonists could claim for canon law a historical priority that
competed with theology in the rank of scientiae.6 Second, it could
be claimed that canon law stood above the three historical ages of
law, encompassing, according to Hostiensis, both “the new law and
4. Gl. ord. ad X 1.1.1 iuxta ordinatissimam, “Hec fuit dispositio: quia tria tempora: tempus ante legem, et tempus sub lege, et tempus gratie. In tempore ante legem habebant homines ius naturale, quo regebantur, quod consistebat in his duobus preceptis contentis his versibus: Quod tibi vis i eri, mihi fac: quod non tibi, noli / Sic potes in terris vivere iure poli. Dist. 1 in principio. In tempore sub lege regebantur decalogo Moysi dato a Deo: et tunc contingebat omnia in i gura, que completa fuerunt tempore gratie, quondo Dei i lius nos docuit precepta evangelica, quibus hodie regimur.” Corpus juris canonici emendatum et notis illustratum, 4 vols. (Rome: 1582), vol. 2, col. 9. See, for example, Knut Wolfgang Nörr, “Recht und Religion: über drei Schnittstellen im Recht der mittelalterlichen Kirche,” 79 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte (KA) 1-15 (1993).
5. Die Summa des Stephanus Tornacensis, ed. J.F. von Schulte (Giessen: Emil Roth, 1891), “Cum enim Adam de inobedientia argueretur a domino, quasi actioni exceptionem obiiciens relationem criminis in coniugem, immo in coniugis actorem convertit dicens; ‘Mulier, quam dedisti mihi sociam, ipsa me decepit et comedi.’ Sicque litigandi, vel, ut vulgariter dicamus, placitandi forma in ipso paradiso videtur exorta.” Cf. Paucapalea’s summa has been printed in Summa über des Decretum Gratiani, ed. Johann Friedrich von Schulte (Giessen: Emil Roth, 1890), p. 1-2; See also Ken Pennington, “Law, Criminal Procedure,” Dictionary of the Middle Ages: Supplement 1 (New York: Charles Scribner’s Sons-Thompson-Gale, 2004: 309-320.
6. See, for example, E. James Long, “Utrum iurista vel theologus plus proi ciat ad regimen ecclesiae: A Questio Disputata of Francis Caraccioli,” Mediaeval Studies (1968) 30: 134-62.
570 KARL SHOEMAKER
the three ages of law.”7 As a result, just as canon law could claim
a presence at the beginning of human history, it could also claim a
presence at the last judgment, an event whose character as a process
of law was not lost on canonists.
The afi rmation that Christ would “judge” the living and the
dead at the end of the ages also elided an alternative possibility,
contemplated but rejected by medieval theologians, in which the
redemption of mankind from original sin and servitude to the
devil might be accomplished through a simple exercise of divine
power rather than judgment. The possibility that human salvation
might harbor a contradiction between the justice and power of
God had been recognized in the doctrines of the ancient Church.
For example, St. Augustine had contemplated a tension between
divine power and justice in his treatise De trinitate, but stressed
that it “pleased God” to free man from the devil by justice rather
than power.8 Nonetheless, insistence on the priority of divine
justice over divine power preserved a tension with which medieval
theologians continued to grapple. In the early twelfth century, the
problem was posed in the following manner:
Did not the devil do an injury to God whose servant he i rst fraudulently deceived and afterward violently held? Therefore, what injustice would God commit if he wrested man from the hands of the unjust invader with only a word of his power?9
Although the anonymous author (long, but incorrectly, thought to
be Hugh of Saint-Victor) seemed to be inviting the conclusion that
nothing prevented God from exercising his power at the expense
of his justice, he was deeply anxious to preserve the role of divine
justice in the redemption of mankind from the power of the devil.
The same text later offered an even sharper formulation of the
7. Hostiensis, Summa Aurea, Proemium, num. 41 (Lyon: 1537).8. De trinitate, Patrologia Latina (Hereafter PL), ed. J.-P. Migne (Paris)
42: 1027 “Placuit Deo, ut propter eruendum hominem de diaboli potestate, non potentia diabolus, justicia vinceretur.”
9. PL 175: 617 Quaestiones in Epistolas Pauli, “Sed nonne diabolus injuriam Deo fecerat, qui servum prius fraudulenter decepit, et post violenter possedit ? Quam ergo iustitiam faceret Deus, si solo verbo potentiae suae eriperet hominem de manu injustissimi invasoris ?” Patrice Sicard has demonstrated that this text was not authored by Hugh of Saint-Victor. See Hugues de Saint-Victor et son école: introduction, choix de texte, traduction et commentaires (Turnhout: Brepols, 1991) pp. 273-277.
THE DEVIL AT LAW IN THE MIDDLE AGES 571
problem: “This is the justice by which Christ vanquished the devil.
The devil is a lover of power, and a forsaker of justice… Christ
was unwilling to use power against a lover of power, but wanted
to use justice against a forsaker of justice.” Thus, we should act in
the same way toward our enemies so that “not by power, but rather
through justice we will be victors.”10
This anonymous text echoed some of the central tenets of the
ancient dogma known as the ransom theory of salvation, which
credited the devil with obtaining a proprietary right in humankind
at the moment of original sin.11 Hence, the emphasis placed on the
justice of Christ stemmed in part from an anxiety that the devil
possessed rights in humankind which would have been unjustly
violated if Christ accomplished the liberation of mankind from the
devil by an act of raw power. Such anxieties persisted despite the
fact that Anselm of Canterbury, writing in the late eleventh century,
is generally credited with negating the idea of the devil’s rights,
at least as a theological matter. By denying that the devil had any
rights, Anselm had relaxed the tension between the power and
justice of God by collapsing the distinction between them. “In an evil
angel there can be no justice at all. There was no reason, therefore,
in respect to the devil, why God should not use his own power
against him for the liberation of mankind.”12 Anselm’s solution
was to show that in employing his power against the devil, God
acted justly against one who did not deserve justice. But Anselm’s
demonstration that the devil had no legal claim on humankind
left intact the question as to whether the salvation of humankind
was an expression of God’s justice or his power, and this question
10. PL 175: 466, “Haec est justitia, qua Christus vicit diabolum. Diabolus amator potentiae, et desertor justitiae, Christum, in quo nihil dignum morte invenit, occidit… Noluit itaque contra amatorem potentiae uti potentia, sed contra desertorem justitiae voluit uti justitia, ut non informaret qualiter contra eumdem hostem nobis sit pugnandum; videlicet non potentia, sed potius justitia, et sic victores erimus.”
11. A succinct statement of this doctrine and its power is given in R.W. Southern, Saint Anselm: A Portrait in a Landscape (New York: Cambridge University Press, 1995) pp. 207-211; criticism of Southern’s account of the reception of Anselm’s theory in medieval Christianity can be found in C.W. Marx, The Devil’s Rights and the Redemption in the Literature of Medieval England (Cambridge: Cambridge University Press, 1995).
12. Cur Deus Homo, 1.7. See, generally, Jaroslav Pelikan, The Growth of Medieval Theology: 600-1300, (Chicago: The University of Chicago Press, 1978), pp. 108-118.
572 KARL SHOEMAKER
continued to trouble theologians in subsequent centuries. By the
thirteenth century, however, the problem of divine justice was also
increasingly a matter of concern for canonists. Examination of this
question requires i rst assessing the disciplinary differences that
had come to divide theologians and canonists in the late-medieval
period before examining a fourteenth-century canon law manuscript
which offers a unique approach to the problem of divine justice.
II/ TENSIONS BETWEEN CANONISTS AND THEOLOGIANS
If medieval canonists and theologians were ostensibly concerned
with the same problem – namely, the nature and contours of God’s
justice within the dogma of Christianity – they approached it from
disciplinary perspectives that were increasingly antagonistic toward
one another. Historians of medieval canon law have rightfully
stressed its insularity and autonomy – tracing “a process of
emancipation” from theology that was begun in the twelfth century
and picked up momentum thereafter.13
Indeed, discord between canonists and theologians regarding
their respective roles within the mystical body can be detected early
on. In a famous passage of De consideratione, composed around
1148, Bernard of Clairvaux asked his former student, the recently
enthroned Pope Eugene III (1145-53):
Therefore, when do we pray? When do we teach the people? When do we edify the Church? When do we meditate on the Law? However, everyday in the [papal] palace they make such a noise of the laws, but of Justinian, not of the Lord.14
Bernard of Clairvaux’s remark highlighted the pious
understanding of “Law” claimed by twelfth-century theologians
13. The phrase is from G.H.M. Posthumus Myejes, “Exponents of Sovereignty: Canonists as Seen by Theologians in the Late Middle Ages,” in The Church and Sovereignty c.590-1918. Essays in Honour of Michael Wilks (Blackwell, Oxford, 1991), at p. 302.
14. De consideratione 1.4 in Opera, eds. J. Leclercq and H.M. Rochais (Rome, 1963), vol. 3, p. 399 [PL 182: 732-3] “Denique quando oramus ? quando docemus populos ? quando aedii camus Ecclesiam ? quando meditamur in lege ? Et quidem quotidie perstrepunt in palatio leges, sed Justiniani, non Domini… Nam certe lex Domini immaculata, convertens animas. Hae autem non tam leges, quam lites sunt et cavillationes, subvertentes judicium. Tu ergo pastor et episcopus animarum, qua mente, obsecro, sustines coram te semper silere illam, garrire istas ?”
THE DEVIL AT LAW IN THE MIDDLE AGES 573
and denigrated the crass understanding of “laws” attributed to
canon lawyers, whom Bernard thought corrupted the Church with
the laws of ancient emperors. In Bernard’s view, the “Lex domini immaculata” had the capacity to convert souls, while the leges
preoccupying canonists, which “are not so much laws as strife and
scofi ng, subvert[ed] judgment.”15 Bernard marveled that the pope,
“a pastor and bishop of souls,” could tolerate the lawyers and their
accompanying litigious prattle that beset him daily.16 In the eyes of
the theologians, the canonists’ preoccupation with litigiousness and
the legislation of Roman emperors was inconsistent with meditation
on divine justice.
The opprobrium theologians heaped upon canon law seems
to have appeared simultaneously with the growth of the new
universities, which, by the early thirteenth century, had dedicated
faculties for the study of canon law.17 Indeed, the study of canon law
thrived, emerging from a “proto-professional” period, which James
Brundage has located between 1150 and 1190, into a full-blown
profession in the thirteenth century.18 By the late twelfth century
and thereafter canon law had reached a stage of development in
which elite practitioners could dedicate their working lives to its
practice and scholarship. Canon lawyers in this era typically earned
university degrees in law, sometimes in both canon and civil law,
and the successful ones could look forward to a relatively structured
career path that included university study, a period of teaching,
15. Id. The phrase “lex Domini immaculata” is a reference to Psalms 18:8.16. Id. “Tu ergo, pastor et episcopus animarum, qua mente, obsecro, sustines
coram tu semper silere illam, garrire istas ?”17. Yves M.-J. Congar, “Un témoignage des désaccords entre canonistes et
théologiens,” in Études d’histoire du droit canonique: dédiées à Gabriel le Bras, 2 vols. (Paris, 1965) pp. 861-84; Joseph de Ghellinck, “Magister Vacarius; Un juriste théologien peu aimable pour les canonistes.” Revue d’histoire de l’Église de France (1943) 44: 173-78. Alan B. Cobban, “Theology and Law in the Medieval Colleges of Oxford and Cambridge”, Bulletin of the John Rylands Library of Manchester, 65 (1982), pp. 57-77; See D. N. Lepine, “The Origins and Careers of the Canons of Exeter Cathedral, 1300-1455,” in Religious Belief and Ecclesiastical Careers in Late Medieval England: The Proceedings of the Conference Held at Strawberry Hill, Easter, 1989, ed. C. Harper-Bill (Woodbridge, Suffolk, Boydell Press, 1991), pp. 87-120.
18. James Brundage, “The Rise of Professional Canonists and the Development of the Ius Commune,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte (KA) (1995) 81: 26–63, at 31; Colin Morris, “From Synod to Consistory: The Bishops’ Courts in England, 1150-1250,” Journal of Ecclesiastical History (1971) 22: 115-23.
574 KARL SHOEMAKER
service as an advocate or counselor and, perhaps, an appointment in
ecclesiastical administration.19
It is possible, of course, to exaggerate the differences between
canonists and theologians. They still shared much in common. For
example, Hostiensis, one of the most esteemed canonists of the
thirteenth century and a cardinal, also wrote a short theological
treatise on the Credo.20 Furthermore, theologians and canonists
collaborated in the heresy controversies that emerged under
the pontii cate of John XXII in the early fourteenth century.21
Nonetheless, such involvement by canonists tended to antagonize
the theologians.22 It did not help matters when Hostiensis (as reported
by his critic, the theologian Pierre D’Ailly) claimed that:
Canon law indeed can be called the science of sciences. For if it is well understood, through it the temporal as well as the spiritual [realms] can be ruled.23
The theologians understood immediately that the descriptive
“scientia scientiarum” was a purposeful elevation by Hostiensis
of canon law above theology within the scholastic hierarchy of
knowledge. Despite the hubris he displayed, Hostiensis could claim
legal authority for his assertion. Justinian’s Digest had called jurists
and judges “priests of justice” because they “worship justice and
profess the knowledge of what is good and fair.”24 Medieval jurists
(both Romanists and canonists) did not fail to elaborate on this
association.25 For example, Accursius understood the priesthood
of jurists to mean that those wanting to become lawyers did not
19. Brundage, “The Rise of Professional Canonists,” 44-5.20. Jean Longère, “L’enseignement du Credo: conciles, synodes et canonistes
médiévaux jusqu’au xiiie siècle,” Sacris Erudiri (1991) 32: 309-341.21. Alain Boureau, Satan hérétique. Naissance de la démonologie dans
l’Occident médiéval (1280-1330) (Paris, Odile Jacob, 2004).22. I elaborate on these issues in an article dedicated to my colleague William
J. Courtenay. See Karl Shoemaker, “When the Devil Went to Law School” in Crossing Boundaries, ed. Spencer Young (New York: Brill, forthcoming 2011).
23. D’Ailly, Utrum indoctus in iure divino possit iusta praeesse in Gersoni Opera Omnia, 5 vols. (Antwerp, 1706) 5: 655 a-b. “Haec scientia vere potest scientia scientiarum nuncupari. Nam si bene intelligatur, per eam tam temporalia quam spiritualia regi possunt.” D’Ailly appears to have been paraphrasing some remarks of Hostiensis in the Proemium to his Summa Aurea.
24. D. 1.1.1. See also Ulrich von Lübtow, “De iustitia et iure,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte (RA) (1948) 66: 458-465.
25. Ernst Kantorowicz, The King’s Two Bodies: A Study in Mediaeval Political Theology (Princeton University Press, 1957), 120-1.
THE DEVIL AT LAW IN THE MIDDLE AGES 575
need to study theology, because theology is already found within
the law.26 The tractatus de legibus in Gratian’s Decretum had also
taught canon lawyers that their discipline required knowledge of
human laws and divine law, and invited the inference, contested
strenuously by theologians like Ockham, that mastery of canon law
encompassed mastery of theology as well.27
For medieval canonists, the distance between the claim that they
had special province in matters concerning the governance of this
world as well as matters governing entry into the next world was
not all that great. When the Fourth Lateran Council asserted that
Christ would “render to each according to his works,” the canonists
surely heard an echo of Ulpian’s famous dei nition of justice as
the “constant and perpetual will to render to each according to
his right.”28 The centrality of divine justice in the economy of
salvation also raised other associations for medieval canonists, who
would have taken to heart the juridical implications of the Pauline
language of salvation as a “justii cation.”29 From this perspective,
the pretensions of the canonists begin to take a different shape.
Canon law, they could claim, was not merely the specialized, but
subservient, knowledge necessary for ordering the processes by
which the Church was administered on earth. It also entailed the
knowledge of justitia, understood both as an attribute of divinity
and as “the state of man ‘justii ed’ before God.”30
But of course divine justice is not limited to humankind. Satan and
his demons are its objects as well. It may have been considerations
such as these that lay behind William Durantis’ quip that even the
devil would receive legal process if he asked for his case to be
26. Glossa ordinaria ad Dig. 1.1.10 “Sed numquid secundum hoc oportet quod quicumque vult iurisprudens vel iurisconsultus esse, debeat theologiam legere ? Respondeo, non; nam omnia in corpore iuris inveniuntur.”
27. Decretum, D. 21, c. 1. “Nam maiorum haec erat consuetudo, ut rex esset etiam sacerdos et pontifex. Unde et Romani Imperatores pontii ces dicebantur.” This was a passage that the civilian jurists, such as Azo, did not overlook. See Ernst Kantorowicz, The King’s Two Bodies, p. 125 ff.
28. Dig. 1.1.10.29. See, above all, Stephan Kuttner, “A Forgotten Dei nition of Justice,”
Mélanges Gérard Fransen (Studia Gratiana 20; Rome, 1976) 76-110, reprinted in Kuttner, The History of Ideas and Doctrines of Canon Law in the Middle Ages (London, 1980) 75-109.
30. Id. at 78.
576 KARL SHOEMAKER
heard.31 It may also have been these considerations that prompted
late-medieval canonists to pay considerable attention to the devil
and his relationship to justice. In the preface to his Summa, Rui nus
explicitly cast the devil as an enemy of humankind and justice:
The dignity of the human creature before sin emanated from these two things, as if suspended from cords, namely, the rectitude of justice and the clarity of knowledge. By the former it presided over human matters and through the latter it drew near to heavenly matters. But as the envy of the devil increased, the rectitude of justice was pushed down by the weight of perverted malice and the light of knowledge was obscured by the gloom of error.32
Fourteenth-century canonists continued to display a keen
interest in the devil, typically focusing on his role as an accuser
of mankind. The ordinary gloss to the Liber Extra noted the
prosecutorial character of the devil, and offered the following
creative etymology:
The devil is called “incriminator” and it is a Greek word. It is derived from “dia,” that is, “two,” and “bolus,” that is “a little morsel,” because he seeks to make two little morsels of the body and the soul.33
Albericus de Rosate’s fourteenth-century legal dictionary
contained several entries under diabolus as well as daemones,
entries which stressed not only the accusatory role of the fallen
angels, but also their insightful understanding of human nature
and human laws.34 The glossators also took notice of demonology.
In his gloss on the Liber Extra, Johannes Andreae included a
fanciful explanation that the word “daemones” was formed from
31. Speculum iuris (Basel: 1574) de inquisitione (p. 42): “et etiam diabolo, si in iudicio adesset, non negaretur.” See also, Ken Pennington “Due Process, Community, and the Prince in the Evolution of the Ordo iudiciarius,” Revista internazionale di diritto comune (1998) 9:9-47.
32. Die Summa Magistri Rui ni, ed. F. von Schulte (Giessen: Emil Roth, 1892), p. 2. See also Robert Sommerville and Bruce Brasington, Prefaces to Canon Law in Latin Christianity: Selected Translation, 500-1245 (New Haven: Yale University, 1998), p. 191.
33. “Diabolus: Dicitur criminator, et est graecum vocabulum, derivatur autem a dia, quod est duo, et bolus, quod est morsellus, quia duos bolos tantum de corpore et anima quaerit facere.” Corpus juris canonici emendatum et notis illustratum, 4 vols. (Rome: 1582), vol. 2, col. 8.
34. Albericus de Rosate, Dictionarium iuris tam civilis, quam canonici (Venice 1573). Most of the pertinent entries were distillations of the attributes of demons that Thomas Aquinas had given in his De demonibus (Rome, 1982) 23: 279-334.
THE DEVIL AT LAW IN THE MIDDLE AGES 577
“deorsum,” since demons have a will to do what their name says,
“to cast down.”35 Despite their destructive power, and their intimate
knowledge of law, the devil and his demons were fundamentally
characterized by their lack of faith.36 This lack of faith, taught
canon law, rendered demons unable to properly understand law and
justice. On this point, the theologians and the canonists were in fact
not very far apart. Still, it would be within the province of canon
law that the question of the justice due to the devil was cast in the
form of a lawsuit between Mary and the devil.
III/ THE PROCESSUS SATHANAE
It may be that the close attention that fourteenth-century canonists
paid to the devil and his demons was a result of the generally
increased interest in demonology that historians have noted
emerging at the end of the thirteenth century. As Alain Boureau
has recently argued, a juridii cation of demonology appears to have
occurred during the papacy of John XXII, generating specialized
interest in demons among theologians and canonists alike.37
A fascinating consequence of this juridical interest in the
legal standing of the devil was the production of an anonymous
manuscript tradition, sometimes known under the rubric Processus Sathanae, that emerged in the i rst third of the fourteenth century.
The Processus Sathanae was simultaneously an account of human
salvation told from within the framework of Roman-canon law and
a demonstration of how the devil’s lack of faith was fatal to his
ability to fully understand the justice he so strenuously sought.
The premise of the Processus Sathanae was that the devil and
his hellish council selected a demon learned in the law and sent
him to the court of heaven in order to sue for a legal title to the
human race. The Virgin Mary, who eventually served as the legal
35. Johannes Andreae, In Quinque Decretalium Libros Novella Commentaria (Torino: Bottega d’Erasmo, 1963), fol. 9, “daemon vel deorsum l uens, vel ruens, ut quod habet in voluntate, ferat in nomine: nonnullus qui decidit, sursum ascendere monet: sed deorsum ruere suadet, unde Matt. 4, ‘si i lius Dei es, mitte te deorsum.’”
36. Johannes Andreae, In Quinque Decretalium Libros Novella Commentaria (Torino: Bottega d’Erasmo, 1963), fol. 6.
37. Alain Boureau, Satan hérétique, op. cit.
578 KARL SHOEMAKER
representative for the human race in the suit, and the demon, who
served as Hell’s advocate, engaged in sophisticated and detailed
legal arguments over the ultimate fate of humanity. Both advocates
relied heavily on Roman and canon law authorities, though at
certain points the Bible was also cited. Christ served as judge in
the case.
Scholars have long recognized that the basic narrative structure of
the lawsuit was lifted directly from the Maskeroen chapter of Jacob
van Maerlant’s late thirteenth-century Dutch text Boek van Merline
(c. 1260), which in turn had borrowed liberally from Robert de
Boron’s slightly earlier Merlin.38 In these texts, which belonged to
the Arthurian literary tradition, the devil’s lawsuit was presented as
Hell’s response to the harrowing accomplished by Christ after his
crucii xion and before his resurrection, in which the Old Testament
elect were forcibly liberated from captivity in Hell. Van Maerlant’s
text circulated widely, and was even translated into other vernacular
languages.39 At some point early in the fourteenth century, however,
an unknown person rendered van Maerlant’s text into Latin, set it
within the procedural framework required by Roman-canon law,
and supplied the various legal and theological assertions within the
text with citations of relevant legal authorities. The citations inserted
into the trial narrative are of uneven reliability, and may have been
part of student exercises at Bologna.40 Copies of the lawsuit also
circulated widely, identii able in at least two distinct manuscript
38. See J.P. Wickersham Crawford, “The Catalon Mascaron and an Episode in Jacob van Maerlant’s Merlijn,” Publications of the Modern Language Association (1911) 26: 31-50; Merlin: A Case Book, eds. Peter Goodrich and Raymond H. Thompson (Routledge, 2003), pp. 1-104; Jacob von Maerlant, Historie van den Grale und Boek van Merline, ed. Timothy Sodmann (1980).
39. Willem Gerritsen, “Jacob Van Maerlant and Geoffrey of Monmouth,” in An Arthurian Tapestry: Essays in Memory of Lewis Thorpe (Glasgow, 1981) 368-388. Representations of Mary or Christ engaged in a dispute or lawsuit with the devil were immensely popular, and many vernacular versions appeared in the late Middle Ages. See, e.g., Frederick Roediger, Contrasti Antichi: Christo e Satana (Florence, 1887); L’Advocacie Notre-Dame, ou La Vierge Marie plaidant contre le diable (Paris, 1855); “Mascarón” in Colección de Documentos inéditos del Archivo general de la Corona de Aragón, eds. D. Próspero de Bofarull y Mascaró, vol. 13. (1853).
40. Biblioteca di Collegio di Spagna, ms. 126, fol. 189r-195r. This manuscript shows clear evidence of the insertion of citations (allegationes) into the text of the lawsuit.
THE DEVIL AT LAW IN THE MIDDLE AGES 579
recensions, and were printed several times in the late-i fteenth and
early-sixteenth centuries.
Surprisingly, only scant legal-historical attention has been paid
to this record of the devil’s litigiousness. The text is not altogether
unknown to scholars, but it has not been closely studied. Earlier
generations of legal historians, including such luminaries as
Friedrich Karl von Savigny (1779-1861) and Sir Paul Vinogradoff
(1854-1925), mentioned various versions of the lawsuit between
Mary and the devil in their surveys of medieval legal literature,
but dismissed them as curiosities. Savigny found the depiction
of sacred subjects frivolous, bordering on sacrilege; Vinogradoff
simply found the text “curious.”41 J. Neville Figgis considered the
text a “jeu d’esprit,” but was rather dismissive of it.42 Even scholars
who refused to dismiss the text as a mere bad joke or sacrilege
asserted that it belonged more properly to the antiquarian study of
the “dogmatic tradition of the ancient Church” rather than to the
study of medieval canon law or theology proper.43 The unlikely
possibility that Bartolus, the great fourteenth-century jurist, had
actually composed one version of the devil’s lawsuit prompted
occasional but unsustained interest from legal historians.44 On
41. Friedrich Von Savigny, Geschichte des Römischen Rechts im Mittelalter. Bd. 6. Das vierzehnte und fünfzehnte Jahrhundert. (Heidelberg, 1831), p. 160. “Der Rechstreit zwischen der Jungfrau Maria und Teufel betrifft das Heil des Menschengeschlechts, und soll dazu dienen, den ganzen Gang des Prozesses an einem erdichteten Beyspiel anschaulich zu machen. In der That aber erscheint diese Arbeit, den Frevel an heiligen Gegenständen ungerechnet, als ein pedantischer, breit durchgeführter Spass.” Paul Vinogradoff, Roman Law in Medieval Europe (2nd ed, Oxford, 1929) p. 129-30, though he appears to have confused the Processus Sathanae and the slightly later Belial tradition. On the Belial tradition, see Norbert Ott, Rechtspraxis und Heilsgeschichte: zu Überieferung, Ikonographie, und Gebrauchssituation des deutschen Belial (Munich, 1983).
42. J. Neville Figgis, “Bartolus and the Development of European Political Ideas,” in Transactions of the Royal Historical Society, New Series, Vol. 19, (1905), pp. 147-168, at p. 164.
43. Roderich Stintzing, Geschichte der populären Literatur des römisch-kanonischen Rechts in Deutschland am Ende des fünfzehnten und im Anfang des sechszehnten Jahrhunderts, (Leipzig, 1867).
44. The difi culties with attributing the text to Bartolus are shown in Carmen Cardelle de Hartmann, “Satan vor Gericht: Die Processus Satanae als Inszenierung juristischer Rhetorik,” in Die antike Rhetorik in der europäischen Geistesgeschichte, eds. Wolfgang Kol er and Karlheinz Töchterle (Wien: 2002). De Hartmann gives a description of the various manuscripts which follows Stintzing (see note above). For the view that Bartolus authored the Processus Sathanae, see Robert Jacquin, “Le Procès de Satan,” in Bartolo da Sassoferato: Studi e
580 KARL SHOEMAKER
balance, however, the Processus Sathanae has received surprisingly
little scholarly attention.
We i rst meet the demonic procurator as he approached the
heavenly throne and exclaimed: “I am a damned procurator for
iniquitous Hell appearing before you in order to bring an action
against humankind.”45 Christ responded in an unwelcoming manner:
“We are not willing to be informed by you, for we recall how while
we were walking on the earth you wished to inform us. You said,
‘speak, so that these stones become bread’ and you said you would
give us riches if we worshipped you.”46 But the demon insisted,
making it explicit that he expected his lawsuit to be heard. “You are
justice and truth. I am seeking justice, petitioning that humankind
be called before you on a certain day in order to respond to me,
the procurator of iniquitous Hell.”47 The demon then presented his
procuratorium, which validated his right to speak on behalf of Hell,
noting, “without this I should not be admitted.”48 After inspecting
the writ and i nding it free of calumny, Christ permitted the demon to
proceed. The demon began by requesting a day to be assigned upon
documenti per VI centenario, (2 vols.) (Milan, 1962); Jacquin’s view appears to be partially adopted by Scott L. Taylor in “Reason, Rhetoric, and Redemption: The Teaching of Law and the Planctus Mariae in the Late Middle Ages,” in Medieval Education, eds. Ronald B. Begley and Joseph W. Koterski, S.J. (Fordham, 2005) 68-81. Nonetheless, perhaps because a version of the Processus Sathanae appears in a Bolognese manuscript that contains a number of Bartolus’ texts (as well as some consilia of Baldus de Ubaldis), the association was an easy one for early printers to make.
45. For all that follows, I rely on the manuscript BnF lat. 10770 (f. 189v-195v) (c. 1360). Other copies of the manuscripts are BnF lat. 18216, Vatican Ross. lat. 1124 (129r-135r), as well as those catalogued by de Hartmann in “Satan vor Gericht: Die Processus Satanae als Inszenierung juristischer Rhetorik,” in Die antike Rhetorik in der europäischen Geistesgeschichte, eds. Wolfgang Kol er and Karlheinz Töchterle (Wien: 2002) and Ina Friedlaender, “Processus Satanae Contra Genus Humanum: Ein Förbisedd Litterär Text I En Formulärbok Från Vadstena Kloster,” Archivistica et Mediaevistica Ernesto Nygren Oblata (Stockholm, 1956), pp. 123-157. A printed edition of the text, dubiously attributed to Bartolus, is the Tractatus Iudiciorum: Processus Sathanae contra genus humanum (Johan Petit, Paris, 1510).
I am currently at work on a monograph that examines the historical, legal and theological contexts of the text, as well as editions of the text in its two prominent variations.
46. Fol. 189v. Christ is making references to the temptation he suffered at the hands of the devil in the desert.
47. Ibid.48. Ibid.
THE DEVIL AT LAW IN THE MIDDLE AGES 581
which humankind should appear and asked that humankind appear
“tomorrow.” To this, Christ replied, “You know from experience
that the way [here] is long. We are not in agreement, and thus the
judge is to assign the day. Thus, we assign you a day, namely Good
Friday, the day I hung upon the cross and died.”49
Anticipating that this did not bode favorably for the outcome of
his case, the demon objected, saying “Lord, everywhere this day is
celebrated.”50 Arguing that even the divine law forbade assigning
a court day on a holy day, the demon claimed that no binding
judgment could be issued on Good Friday. Christ answered thus,
“We have founded the laws and we give to them authority. They do
not give authority to us.”51
Medieval jurists would have recognized the political resonance
of this statement, for it held implications for both royal and papal
politics. For example, Bracton, the most well-known commentator
on English common law in the thirteenth century, read the
cosmic conl ict between Christ and the devil as an argument for
the submission of earthly kings to earthly law.52 And as William
Courtenay has shown, some canon lawyers even transplanted
the theological language of divine power (potentia absoluta and
potentia ordinata) to the realm of papal power and attributed to the
pope the power to act outside the process of law.53 In fact, some
canonists held the view that the pope, like God, was only bound
by the law by his own benevolence, not necessity.54 Hostiensis, for
example, argued that the pope could suspend the ordinary operation
of the law on account of ratio status ecclesiae. Whether or not
canonists thought that the pope could claim this divine power (and
some thought he could), Christ as judge was asserting an unqualii ed
power to circumvent the rules of legal process. The problem of the
relationship between divine justice and divine power had been
recast as a matter of judicial prerogative.
49. Ibid.50. Ibid.51. Ibid.52. See Bracton, De legibus f. 5b, 2:33; and the discussion by Kantorowicz,
The King’s Two Bodies, p. 156.53. William J. Courtenay, Capacity and Volition (1990), p. 93-94.54. Hostiensis, Lectura in quinque decretalium Gregorianarum libros, ad
5.31.8 (Venice, 1581).
582 KARL SHOEMAKER
Hence, Good Friday was designated as the day for humankind to
appear and the lawsuit to proceed, and the Archangel Gabriel was
commanded to summon humankind.
On the appointed day, the demon returned to the court of heaven
and waited impatiently to be heard. No one appeared on behalf of
humankind and the demon eagerly requested letters establishing the
failure of humankind to appear. Christ refused the request of the
demon, instead ruling that humankind should be given an extra day
to appear. This caused the demon to exclaim, “Where is justice? I
do not i nd it in heaven!”55
At this point, we learn that the Virgin Mary had been following all
these events and was resolved to serve as an advocate on behalf of
humankind.56 Realizing that Mary intended to serve as an advocate
for humankind, the demon cried out, “Holy Father, let not l esh and
blood move you!”57 The demon then made two objections in law.
First, he explained, Mary cannot be an advocate because she is a
woman. Second, she is the mother of the judge.58
The Virgin Mary was ready with a response. Although it is true
that “women generally are not admitted to the ofi ce of advocate,”
she explained, women are permitted to serve as advocates for
orphans, widows, and miserable persons. Since many such persons
would be returned to servitude in hell if no one spoke on behalf
of humankind, she should be allowed to stand as an advocate
notwithstanding the fact that she was a woman. Moreover, Mary
explained, if she were an excommunicant, she would be able to
act as advocate for herself. And although she was the mother of
the judge, she was also a member of humankind and thus named
defendant in the lawsuit. In fact, not only did Mary belong to
humankind, she was simultaneously a member of all three orders of
women: married, chaste, and a virgin. As such, she had the right to
serve as an advocate despite her sex and her relation to the judge.
Displeased, the demon had no choice but to proceed. Initially,
the demon cast the case as one of spoliation. Hell and its demons
had been in “peaceful possession” of humankind for thousands
of years without any objections being made, but were recently
55. Fol. 190r.56. Fol. 190v-191r.57. Fol. 191r.58. Fol. 191r-191v
THE DEVIL AT LAW IN THE MIDDLE AGES 583
unjustly dispossessed. Therefore, the demon demanded immediate
and full restitution.59 Mary replied, however, that no claim to unjust
spoliation could be made by one who had come into possession of a
thing by fraud. Since Hell only had gained possession of humankind
through the lies of the devil in the Garden of Eden, it could not claim
rightful possession now. On this point, Christ sided with Mary and
denied to the demon his claim for restitution.
Undaunted, the demon changed tactics. Abandoning his claim for
restitution, he strode forward, presented the Bible, and began to read
from Genesis concerning Adam’s disobedience in the garden. The
demon argued that the violation of divine command accomplished
by Adam and Eve was imputable to the entire human race. To
this, Mary countered by claiming that Adam and Eve sinned at the
urging of the serpent by whom Eve was deceived into disobeying
God. As a party complicit in the crime, argued Mary, Hell could
not now bring an accusation against another for the same crime.
But the procurator had a response ready. Relying on the logic of
the inquisitorial procedures that canonists had developed in the
early thirteenth century, the demon explained that when a delictum
is perpetrated notoriously, a judge should proceed and punish it
even if there is no accuser. Hence, the obligation to proceed against
humankind fell to Christ as judge, regardless of whether the devil
was complicit in original sin (and therefore unable to bring an
accusation) or not.
This argument struck a cord with Mary. Her response was
dramatic. Fearing that the judge would i nd against humankind,
Mary stopped relying on citations to Roman-canon law. Instead,
following “the fragility of the womanly sex,” Mary “exploded into
tears, knelt, and cut her vestments open at the breast.”60 Addressing
her son, she sobbed “My blessed son, there is the one who rejected
you, stoned you, had you tied to a column, and hung on a cross like
a thief. He implores your noble ofi ce. I am your most dear mother
that carried you for nine months and piously nourished you with milk
from these breasts.” If you i nd for the demon, she wept, “delete me
from your book of life.”61 This vignette, in which the advocate was
59. Fol. 192r.60. Fol. 193r.61. Ibid.
584 KARL SHOEMAKER
reduced to a weeping woman, was a prime reason modern scholars
dismissed the text. Indeed, how could one not agree with the demon
when he remarked to Christ, “I say to you that l esh and blood, not
celestial justice, have been revealed by the Son.”62
From the perspective of medieval canonists and theologians,
the demon’s remark betrayed ignorance of an important attribute
of Mary’s tears. For both theology and canon law placed heavy
stress on the spiritual efi cacy of tears. Tears were not merely
an attribute of the body in the medieval period; they were also a
profound and necessary medium for intercession, spiritual renewal,
and justii cation.63
But there appears to be more to Mary’s action than mere tears.
In a curious bit of testimony given at the canonization process of
Yves Hélory in Brittany in the 1330s, we i nd the following. A
certain young man (also named Yves) was freed from demonic
possession by the saint. The young man’s demonic possession had
i rst occurred when his mother cursed him by “falling to her knees
and extracting her breasts from her garment, saying: ‘I give to you
my curse with these breasts which you sucked and my womb in
which I carried you and by whatever rights [juris] I have in you
and am able to have in you . . . all of it I give over and concede to
the devil.”64 The mother’s curse contains a nearly exact replication
of the gestures attributed to Mary in the Processus Sathanae, but
here the scene is inverted. Rather then asking to be deleted from
the book of life, Yves’ mother explicitly cedes her rights, as jura,
to the devil. The invocation and exposure of nursing breasts and
a carrying womb remains the same, suggesting something of an
archetype for pleading or cursing. It is a gesture of possession and
dispossession, and as such it is an act of transfering, or threatening
to transfer, rights. Whereas the mother of Yves dispossessed him
62. Fol. 193v.63. On the theological aspects of tears in the middle ages, see Piroska Nagy,
Le don des larmes au Moyen Âge (Paris, 2000); on the legal aspects, see William J. Courtenay and Karl B. Shoemaker, “The Tears of Nicholas: Simony and Perjury by a Parisian Master of Theology in the Fourteenth Century”, Speculum (2008) 83: 603-628.
64. Monuments originaux de l’histoire de Saint Yves, eds. A. de la Borderie, J. Daniel, R.P. Perquis, and D. Tempier (Saint Brieuc: L. Prud’homme, 1887), p. 419-420. This scene is discussed in Alain Boureau, Satan hérétique, op. cit., chapter 5.
THE DEVIL AT LAW IN THE MIDDLE AGES 585
and abandoned him to the devil, Mary restated her belonging to
humankind, willing even to join us in eternal damnation should
the devil prevail. Whereas the mother of Yves willingly gave up
her rights, Mary recalled her son to the maternal relationship that
bound them. Whereas the mother of Yves gave up her rights in
anger and despair, Mary claimed her rights in Christian faith. More
than simply the tearful expression of an overwrought woman,
Mary’s gesture in the trial was deeply bound up in fourteenth-
century understandings of the rights of motherhood. In this way,
Mary’s plea was not extralegal.
Mary’s plea was effective. Moved by her pious tears, Christ
denied the petition of the demon and refused to hear criminal
charges against humankind. As a formal matter, the trial was still
not over, though it is clear that everything from this point onward
had tipped in Mary’s favor. The demon insisted on a distribution
of souls between Mary and Hell. He was willing to allow her to
take the good souls and to content himself with the bad souls. It
was a division the demon anticipated would be benei cial to Hell.
But Mary was ever vigilant, and reminded Christ in explicitly
theological terms that he had already suffered punishment on
behalf of humankind. What the demon sought was already a res judicata. There was nothing to litigate. The demon was expelled
from the heavenly court, and Mary was showered with praise from
the choir of angels.
It is clear that the Processus Sathanae is an expression of Marian
theology, set in juridic terms. But it is also an account of human
salvation framed by the processes of fourteenth-century Roman-
canon law. The Processus Sathanae insisted that the theology of
Christian redemption could be coherently presented through the
processes of canon law, and that the devil’s one-sided understanding
of law was the result of an engagement with law that was blind to its
spiritual content and purpose. The Processus Sathanae addressed
human salvation in a manner that also implicated the relationship
between Christ (and his vicar on earth, the pope) and the law,
framing the matter within the theological and jurisprudential issues
of the late medieval world. At bottom, it all depended on a world of
seamless intelligibility that linked spiritual truth and legal processes,
586 KARL SHOEMAKER
whether human or divine. It also depended on a world that was
granted reason and historical purpose by a presumed loving deity
susceptible to being moved by tears and capable of dissolving
rules of law in favor of a higher justice, one which resulted in the
salvation of humankind. Whatever squabbles divided canonists and
theologians, the devil’s lawsuit provided a medium by which the
troublesome relationship between divine justice and divine power
was given one explanation in the fourteenth century.
kbshoemaker@wisc.edu
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